Paige Gillett-Fitzallen v Bluestone Mines Tasmania Joint Venture Pty Ltd

[2024] FWC 2688

[2024] FWC 2688

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Paige Gillett-Fitzallen
v

Bluestone Mines Tasmania Joint Venture Pty Ltd

(U2024/8145)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 SEPTEMBER 2024

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative

1. Ms Paige Gillett-Fitzallen applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 12 July 2024.

1. Ms Gillett-Fitzallen stated in her unfair dismissal application (Form F2) that her employment with Bluestone Mines Tasmania Joint Venture Pty Ltd (the Respondent) commenced on 24 January 2024 and that her dismissal took effect on 28 June 2024.

1. On 18 July 2024, the Commission attempted to contact Ms Gillett-Fitzallen on her nominated telephone number. A voicemail message was left requesting Ms Gillett-Fitzallen to contact the Commission to confirm her intentions in relation to her unfair dismissal application. This is because the information provided in her Form F2 suggested that she may not have served the minimum employment period to be protected from unfair dismissal under the Act. The voicemail message also informed Ms Gillett-Fitzallen that the minimum employment period was not met in relation to her unfair dismissal application based on the employment dates provided in her Form F2.

1. Later that day, the Commission emailed correspondence to Ms Gillett-Fitzallen’s nominated email address informing her that she had not served the applicable minimum employment period based on the information that she had provided in her Form F2. The correspondence directed Ms Gillett-Fitzallen to file any documentation to support any claim that she had served the applicable minimum employment period under the Act. That correspondence also warned Ms Gillett-Fitzallen that if she did not contact the Commission within 14 days, her application might be dismissed without further notice. In addition, a SMS notification was sent to Ms Gillett-Fitzallen’s nominated mobile number requesting her to contact the Commission.

1. The Commission did not receive any documentation in support of Ms Gillett-Fitzallen’s Form F2 that could evidence that she had worked for the Respondent for the applicable minimum employment period within the 14 day timeframe specified in the correspondence dated 18 July 2024.

1. The Commission made a final attempt to contact Ms Gillett-Fitzallen on her nominated telephone number on 1 August 2024. The call was not answered and a voicemail was left requesting Ms Gillett-Fitzallen to urgently contact the Commission to confirm her intentions in relation to her unfair dismissal application and informing her that her application may be dismissed if no contact was received by close of business on 5 August 2024. No response was received.

1. To date, Ms Gillett-Fitzallen has not responded to the Commission’s attempts to contact her in relation to her Form F2 application.

1. Section 382 of the Act sets out that a person is protected from unfair dismissal if, inter alia, they completed a period of employment with their employer of at least the minimum employment period.

1. Section 383 of the Act sets out the minimum employment period as follows:

“383    Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.” (bold and italicised text in the original)

1. Section 587 of the Act relevantly provides as follows:

“587    Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” (bold text in the original)

1. To be protected from unfair dismissal, a person applying for an unfair dismissal remedy under the Act needs to have completed a period of employment of at least 6 months with their employer. The material before the Commission indicates that Ms Gillett-Fitzallen has not satisfied this requirement and, therefore, I am satisfied that her application has no reasonable prospects of success. As such, Ms Gillett-Fitzallen’s unfair dismissal application is dismissed under s.587(1)(c) of the Act. An order[1] to this effect will be issued with this decision.    

DEPUTY PRESIDENT

[1] PR779699.

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<PR779700>